Recently I had the honor of serving as the co-chair of the Legislative Task Force to Study Ways to Protect Senior Citizens from Fraud. The Task Force was created pursuant to a bill enacted by the Connecticut legislature in 2021 and was comprised of ten individuals appointed by various legislative leaders.
Besides myself, the members of the Task Force were Michael Werner (Co-Chair), Legislative Policy Analyst at the Commission on Women, Children, Seniors, Equity & Opportunity, Matthew Barret, President & Chief Executive Officer, Connecticut Association of Healthcare Facilities & Connecticut Center for Assisted Living, Steven Rubin, Partner, Drazen Rubin Law Firm, Anna Doroghazi, Associate State Director of Advocacy and Outreach, AARP CT, Michele Jakab, Director of Human Services, Trumbull Senior Center, Jacqueline Haywood, Retired executive from Aetna, Marie Allen, Executive Director, Southwestern CT Agency on Aging, Lara Stauning, Attorney with State Unit on Aging Department of Aging and Disability Services, and Matthew Antonetti, Agency Legal Director for Department of Social Services.
From October 2021 through February 2022, the Task Force met for eight 2-hour meetings to hear testimony from professionals familiar with issues that affect older adults in Connecticut and discuss ways to reduce the risk that residents of our State would be victims of fraud.
Some of the esteemed speakers included the Connecticut State Long-term Care Ombudsman, Mairead Painter, the Probate Court Administrator, Judge Beverly Streit-Kefalas, Inspector Tracy Enns from the Office of the Chief State’s Attorney, the Department of Banking Outreach Coordinator, Kathleen Titsworth, the CHOICES State Director, Melanie Lambert and Dorian Long from the Protective Services for the Elderly program. We also heard from several well-respected elder law attorneys, including Edward Lang, Amy Todisco, Linnea Levine, Carmine Perri, and Jerold Rothkoff from New Jersey.
At the conclusion of the regular schedule, the Task Force compiled all of the information is gathered into a comprehensive report for the legislature and concluded with four primary recommendations. The following is an excerpt from the report, which can be found on Connecticut’s Aging Committee website.
Study to Protect Senior Citizens Summary
Connecticut has the seventh-oldest population in the United States and is home to 823,529 residents aged 60 or older, which is 23% of our state’s inhabitants. Our population is the most diverse in New England in terms of race and ethnicity.
With our aging population, Connecticut has a special responsibility to help make sure that systems are in place to protect all residents, especially those in this vulnerable cohort, from financial victimization now and into the future. We saw through the course of the COVID-19 pandemic almost 91% of all COVID-19 associated deaths were from residents 60 years old or older.
Older adults in Connecticut are too often victims of fraud, violations of consumer protection, and a system that does not adequately train the professionals to whom older adults and their families reach out to when in need.
Older adults often feel shame and embarrassment when it comes to reporting fraud or financial exploitation and fear being conserved or not wanting to testify against those who have stolen from them, who are many times a family member or caretaker.
According to the United States Department of Justice, “about 1 in every 10 seniors is abused each year and only about 1 in every 23 cases is actually reported to the appropriate agencies. ”As detailed more fully below, our research identified four key areas where the State can improve the system and provide protections and effective systems of fraud prevention and intervention for all residents as they age.
The process of applying for long-term care Medicaid services, both in a skilled nursing facility and in the community for home care services, is complex and involves a multitude of laws, rules and regulations that include protections for consumers.
Yet, the systemic complexities inherent in long-term care planning are not necessarily appreciated when an individual may consider applying for such Medicaid supports and these protections are often overlooked to the detriment of older adults and people with disabilities.
Some older adults do not get the assistance they need to stay safe and healthy in the community because they receive incorrect information from untrained and unlicensed professionals.
Many of these professionals are not intentionally harming the older adult but they also lack the understanding of the complexities of the state and federal laws and rules impacting planning and long-term care services, which hurts the older adult.
Proper guidance is necessary to ensure that our residents are not left unattended because they are told they do not qualify for services or are forced to enter a skilled nursing home simply because they have exhausted their funds before they receive proper guidance or unnecessarily spend their funds when they can otherwise be safeguarded for a spouse, disabled child or someone who has had to leave their job to care for a loved one.
The Task Force recommends simple, straightforward disclosures that a Medicaid application assistor would be required to review with an applicant before completing an application for long-term care Medicaid services and supports.
The Task Force learned that often older adults do not get proper guidance because they simply do not know who to contact for assistance.
The Task Force to protect senior citizens reviewed the various entities, state agencies, and professionals who could serve as resources for older adults and concluded that there is no one centralized entity that currently serves as a hub for older adults in the community to reach out when they need help or answers when considering long-term care services and supports.
The Task Force recommends a Community Ombudsman, similar to the Long-Term Care Ombudsman, to serve the older adult population living in the community with long-term care needs.
The Task Force also learned that many mandated reporters, including professionals such as police officers and medical practitioners, are not aware of their legal obligation to report suspected elder abuse or financial exploitation to the Department of Social Services’ Protective Services for the Elderly program, or how to submit a report of elder abuse or financial exploitation.
This lack of knowledge results in significant under-reporting of incidents of all types of abuse. Failing to timely report allows the abuse or financial exploitation to continue without intervention.
To remedy this issue, the Task Force recommends that mandated reporters be statutorily required to attend periodic training on how to recognize the signs of elder abuse and financial exploitation, to whom reports must be submitted and the process to make reports.
Recognizing that with increased awareness and knowledge about when and how to report elder abuse or financial exploitation there will be increased demand on the Protective Services for the Elderly Program (“PSE”), the Task Force recommends that a staffing ratio be adopted by statute to ensure that there is adequate skilled personnel available to investigate and respond to reports of all types of elder abuse or financial exploitation.
Despite a steady increase in reports of elder abuse and exploitation in recent years, the number of Protective Services for the Elderly staff able to respond and assist older adults has declined.
A recent state audit recommended a maximum caseload per Social Worker be established to ensure that there are enough Social Workers to meet the needs of the program, which are anticipated to continue to grow.
The PSE Program, designed to safeguard elders from physical abuse, neglect, and financial exploitation, is extremely valuable to ensuring the future well-being and financial security of our residents, yet the Task Force learned that even many professionals, including police officers and other mandated reporters, may not be aware of the program or of when they are required to report an incident to PSE.
Furthermore, the Task Force learned that PSE is likely understaffed to manage Connecticut’s increasing elder population. The Task Force recommends ensuring dedicated budgetary support for PSE staffing ratio of 25 cases per employee, to include budgetary support for the hiring of staff experienced in accounting and financial investigations, and prioritizing training for mandated reporters.
In order to ensure that professionals in the community with frequent access to, and observation of, vulnerable older adults and their finances have the proper training to identify potential fraudulent activities or financial exploitation, and know what to do when they see them be established by law to ensure Protective Services for the Elderly can provide timely and effective responses to reports of abuse.
- The Task Force recommends including disclosures and recommendations that a Medicaid application assistor is required to review with applicants before completing Medicaid applications.
As the Task Force learned through the testimony of several elder law attorneys and other professionals who work on Medicaid applications, qualifying for Medicaid can be a complex, often nuanced and circumstance-specific, process.
Federal law allows anyone to complete the application without assistance (and many people do); however, the planning and preparation in advance of completing the application may be complex and applicants may benefit from guidance and analysis from an elder law attorney.
The Task Force heard a multitude of examples that even some of the professionals on the committee were not aware could affect someone’s eligibility. Additionally, the Task Force heard from a representative from a Medicaid application assistor company who acknowledged and agreed that non-attorney Medicaid application assistors do not have the authority or expertise to provide legal guidance to applicants.
The Task Force to protect senior citizens members discussed the importance of assuring the rights of those seeking application assistance are not violated or undermined. The gap in the system appears to be a misunderstanding of what defines a complex situation that requires more than a simple completion of an application.
Seemingly simple fact patterns regarding an individual’s financial planning with respect to anticipated long-term care supports may benefit from legal analysis and advice to ensure that the consumer’s rights and financial security are best protected.
Not getting proper legal advice can prevent you from receiving benefits that you are otherwise entitled to and may affect the assets you are entitled to. The Medicaid eligibility requirements may raise questions that require legal advice and counsel.
Federal law permits you to have a representative assist you in applying for Medicaid assistance. A non-attorney is not subject to state or federal regulation and the consumer protections provided by state and federal law.
Some non-attorneys hold themselves out to be “Medicaid Specialists”; even though they cannot provide you legal or financial advice.
While non-attorneys may provide limited services such as completing the correct Medicaid application form and assisting you in obtaining personal and financial records, only an attorney can provide advice and knowledge in the following matters that require the knowledge, training and professional judgment of an attorney licensed to practice in Connecticut:
(1) Assessment of fact and interpretation of federal and state law to determine Medicaid eligibility that protects the interest of the Medicaid applicant and his or her spouse and family.
(2) Legal review of assets and financial information, as well as the provision of legal advice to a Medicaid applicant and his or her spouse of legal actions that protect their assets and income and allow for the receipt of Medicaid benefits at the earliest allowable date.
(3) Evaluation and preparation of the legal documents necessary for Medicaid eligibility.
(4) Petitioning the Probate Court for a spousal support order.
(5) Advisement on state law concerning the right to be repaid upon the death of the Medicaid applicant or their spouse.
To ensure that consumers’ rights are protected, the Task Force suggests, at a minimum and to the extent permitted by federal law, that the following information be highlighted in any materials accompanying the Department of Social Services’ application for Long-Term Medical Care or Home Care services or when an organization or facility informs a consumer to services offered by non-attorney “Medicaid application assistors”, which the Task Force defines to include any individual or entity, including a private organization, or government agency who provides assistance in the area of LTSS Medicaid applications.
You may wish to seek the advice of an elder law attorney PRIOR to completing this Medicaid application to ensure your finances and rights are protected. Please know that you have legal rights that can protect your assets.
For example, if you are seeking long-term medical care or home care services and you:
- have a spouse;
- own real estate;
- have a child who is disabled; or
- if someone has been living with and caring for you in the last two years.
You may contact the Connecticut National Academy of Elder Law Attorneys for a list of Elder Law Attorneys who can assist you with your Medicaid Application by calling (860) 223-4400. If you have suffered Medicaid ineligibility and/or significant financial loss due to the actions or advice of a non-attorney Medicaid planner, you may file a complaint with the Connecticut Department of Consumer Protection by calling (860) 713-6100.
- The Task Force recommends a Community Ombudsman similar to the Long-Term Care Ombudsman to serve Connecticut residents living in the community and receiving long-term care services and support.
The need for an expanded Ombudsman role in Connecticut is long-standing and pre-dates the COVID-19 pandemic. In 2019, the Connecticut General Assembly passed Special Act No. 19-18, An Act Concerning a Community Ombudsman, which highlighted the already clearly emerging need to develop a Community Ombudsman program to investigate complaints concerning care received by recipients of home and community-based services.
According to a recommendation of the recently published 2022 Long-Term Supports and Services Report, Connecticut should, “expand the scope of the Long-Term Care Ombudsman program to provide Ombudsman support to consumers receiving long-term services and supports regardless of setting in order to align the program with Medicaid LTSS rebalancing efforts.
Additional appropriations to the Long-Term Care Ombudsman program would be necessary to expand beyond their current jurisdiction.” The Senior Fraud Task Force echoes this recommendation and believes it to be vital to help address Quality Assurance and Prevention aspects to protecting older adults from fraud and financial exploitation.
The Community Ombudsman would have the authority to investigate, review and potentially refer for sanction as appropriate any provider including those participating in the Connecticut Home Care Program, as well as any licensed or unlicensed provider of long-term service and supports defined as medical or nonmedical.
There are multiple critical elements as to why an expanded Ombudsman program would successfully help long-term services and supports recipients, including the autonomy and independence of the agency, the non-mandated-reporter nature of the agency, and the existing expertise and institutional knowledge that the Ombudsman program’s leadership and staff bring to the arena.
- The Task Force recommends mandated training for mandated reporters to ensure that the professionals who are out in the community with vulnerable older adults have the proper training to spot issues and know what to do when they see them.
The Task Force to protect senior citizens heard the success of the training that the Department of Banking provides to the staff of financial institutions. The training that is provided to tellers, bank managers, and other professionals who interact with the public has proven successful in educating those professionals on suspicious activity or actions and how to report them.
Although financial agents are not mandated reporters, the mandated training has proven to work; it is done because the banks are required by state statute to receive mandated training, and they have a financial incentive to ensure that their employees recognize financial exploitation.
Unfortunately, professionals who interact with older adults who are mandated reporters are not mandated to receive training on how to identify financial exploitation and how and where to report it. The Task Force believes that this type of education and training is the key to reducing older adult financial exploitation, but the training needs to be mandated by law.
The Task Force recommends that the legislature enact mandated training for all mandated reporters who interact with older adults. The Task Force suggests that adequate funding be provided to develop mandatory training be created and be made available to mandated reporters in an easy-access online format.
Task Force representatives who also sit on the Coalition for Elder Justice in CT Steering Committee, expressed interest in collaborating with Coalition members to develop training programs that suit a variety of disciplines that work with older adults.
- The Task Force recommends ensuring staffing for Protective Services for the Elderly on a ratio of 25 cases per employee with dedicated budgetary support to accommodate such staffing ratios.
The Task Force recognizes that if more professionals are trained to recognize the clues of abuse or financial exploitation fraud and know who to contact, the state’s Protective Services for the Elderly Program will be overburdened.
This is not a reason to forego this important improvement in the system to reduce older adult abuse and financial exploitation with appropriate budgetary allocations to address the anticipated increase in workload experienced by the Protective Services for the Elderly Program.
The Task Force recommends that the legislature consider instituting a targeted staffing ratio for the Protective Services for the Elderly Program to ensure that the caseload is manageable, with dedicated budgetary allocations to support skilled agency staffing to maintain such ratios.
According to information provided in a recent state audit conducted on Protective Services’ performance, a caseload of 25 cases per Social Worker allows stronger community partnerships, which may allow social workers or other staff skilled in accounting and financial investigations to better meet the needs of the program.
It was an honor to work with the dedicated and thoughtful members of the Task Force and I look forward to working with the members of Connecticut’s legislature to further explore the recommendations and concerns about fraud in our State.
If fraud has affected you or your loved one, please be sure to get in touch with your legislator to let him or her know. In fact, I encourage everyone to let your voices be heard to your State representatives, no matter what the topic. They can only address issues that they know about, so reach out and express your concerns.
Joan Reed Wilson Esq. – Managing Partner
Practices in the areas of estate planning, elder law, Medicaid planning, conservatorships, probate and trust administration, and real estate. Admitted to practice in the States of Connecticut and California, she is the President-elect of the CT Chapter of the National Academy of Elder Law Attorneys (NAELA), an active member of the Elder Law Section of the Connecticut Bar Association, accredited with the PLAN of CT for Pooled Trusts, with the Veteran’s Administration to assist clients with obtaining Aid & Attendance benefits for long-term care needs and with the Agency on Aging’s CareLink Network.